Agencies that are able to receive whistleblower disclosures must ensure that their staff are aware of their obligations under the whistleblower disclosure regime in order to ensure compliance with the short timeframes.
A person can make a whistleblower disclosure through any method they choose, so your staff may be contacted by email, post, telephone, in person or through your ordinary lodgement methods. A whistleblower does not need to identify themselves as a whistleblower or use any special phrasing to attract the protections and impose investigation obligations upon an agency.
The main risks are:
- in recognising a whistleblower disclosure when your agency receives it and
- meeting the short timeframes that follow.
What is a protected disclosure?
The first step is determining whether the information you have received amounts to a protected disclosure by a whistleblower. The below infographic may help. However for detail please see section 337A of the RO Act.
It is worth noting that a protected disclosure can include information that you may have received in your agency’s normal course of business, for instance an unfair dismissal or an underpayment of wages complaint by an employee of a registered organisation or an alleged breach of right of entry provisions notified by an employer who has had a transaction with an organisation.
Further a disclosure can come to an agency from a person’s lawyer on their behalf.
Once you have determined it is a disclosure, you must allocate the matter to an authorised official within 14 calendar days of receiving the disclosure.
The timeframes for a protected disclosure investigation are very short and must be watched carefully. They are addressed in detail through the steps below but basically include:
The timeframes are calendar days. Extensions of time can be sought from the Commissioner if further time is required to complete the investigation.
Allocate the matter to an authorised official
Within 14 days of receiving the disclosure the matter must be allocated to an authorised official. The RO Act defines authorised official to mean:
- The Commissioner
- The General Manager of the FWC
- An FWC Member
- The Fair Work Ombudsman
The authorised official must consent to receive the allocation of the protected disclosure. When seeking the consent of the authorised official ensure that you notify them of how long it has been since the disclosure was received.
The matter can be allocated to the authorised official within your own agency or to an authorised official in a different agency more suited to the particular disclosure made.
The agency must notify the discloser that the allocation has been made.
Notify the ROC of the allocation
If the matter is not allocated to the Commissioner, the Commissioner must be informed of the:
- Allocation of the disclosure to the authorised official
- Information that has been disclosed
- Suspected disclosable conduct
- Discloser’s name and contact details (consent is required to disclose their name or contact details)
If the matter is allocated to the Commissioner, this step is not required.
The authorised official must investigate
The authorised official must investigate except in prescribed situations. When an investigation is commenced it must be completed within 90 calendar days (unless an extension is granted).
The regulations prescribe situations in which an investigation does not need to be commenced or investigated further. These include:
- the information does not, to any extent, concern serious disclosable conduct;
- the disclosure is frivolous or vexatious;
- the discloser has informed the investigator that the discloser does not wish the investigation to be pursued, and the investigator is reasonably satisfied that there are no matters concerning the disclosure that warrant investigation;
- it is impracticable for the disclosure to be investigated:
- because the discloser’s contact details have not been disclosed; or
- because the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the investigator asks the discloser to give; or
- because of the age of the information;
- because the information is being, or has been, dealt with adequately in another manner. There is a table at regulation 176G detailing when the information is dealt with adequately in another manner.
If the authorised official determines not to commence an investigation, the discloser must be informed of the obligation to investigate and that the authorised official has decided under subsection 337CA(2) of the RO Act and regulation 176G not to investigate the disclosure.
The authorised official must also inform the Commissioner that they do not intend to investigate the disclosure and the reasons for the decision.
The investigation – the 90 day time limit and extensions
Once the decision has been made to commence an investigation, the discloser must be informed that an investigation is required and the estimated length of the investigation.
The investigation must be concluded within 90 calendar days of the allocation.
If an extension of time is required beyond the 90 days, an application may be made to the Commissioner seeking an extension for any additional required period (which can be greater than 90 days). The discloser is also able to seek an extension of time from the Commissioner. The Commissioner is able to extend the period by whatever amount of time the Commissioner considers appropriate.
Multiple extensions may be sought.
If an extension is granted, the Commissioner will inform the discloser of the extension and the reasons for the extension being granted. The authorised official must inform the discloser of the progress of the investigation.
Referral of matters to other agencies and authorities
The RO Act includes, at section 337CD, the power to notify a member of an Australian Police force of evidence of an offence against a law of the Commonwealth, a state or territory. If the offence is publishable by imprisonment of life or at least 2 years, the authorised official must notify the police.
If the authorised official suspects a breach of the Competition and Consumer Act 2010 they may disclose the information to the ACCC and/or the police.
Information may also be shared with other relevant agencies.
Completing the investigation
Once the investigation is complete, the agency must notify the discloser of:
- the completion of the investigation
- and that:
- the authorised official will/will not be taking further action as a result of the investigation
- the authorised official will/will not be making recommendations to other government authorities
The authorised official must also complete a report setting out:
- the matters considered in the course of the investigation
- the duration of the investigation
- the authorised official’s findings (if any)
- the action (if any) that is being, has been, or is recommended to be, taken
- any claims made about, and any evidence of, detrimental action taken against the discloser and the response
Within 30 days of completing the report, a (redacted) copy of the report must be provided to any person or body that the report recommends takes action.
The official may redact any material likely to identify the discloser or another person or would result in the copy being exempt from the FOI Act or contravene a designated publicity restriction.
Notify the ROC of the completion of the investigation
While it is not required by the RO Act, it is recommended that the agency inform the Commissioner of the completion of the whistleblower investigation.